The purpose of protective norm in tortious liability arising from a breach of statutory duty

This article examines the function and assessment of the protective purpose of a provision in tort liability, arising from the breach of a statutory duty, through the lens of Estonian and German law. Liability for breach of a statutory duty represents a key, yet conceptually complex form of tort liability. The difficulty lies in determining which legal provisions qualify as protective norms and what the protective purpose of such a norm entails in a specific case. Since neither the Estonian Law of Obligations Act nor the German Civil Code provides explicit guidance on these questions, it becomes necessary to develop interpretative criteria that delineate the scope of protection. As liability for breach of a protective provision may result from both acts and omissions, and as such norms may derive not only from statutes but also from regulations, local ordinances, or European Union law, the potential sources of liability are highly diverse and assign importance to establishing clear criteria for determining the protective purpose of such norms and, as a related matter, identifying which norms may qualify as protective norms in the first place. Drawing on Estonian and German case law, legislative materials, and legal doctrine, the article proposes a set of criteria for assessing a norm’s protective purpose—emphasising the provision’s wording, legislative intent (ratio legis), and the foreseeability of harm to a reasonable person. These findings aim to offer practical guidance for identifying and evaluating protective provisions.